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THE WALL STREET JOURNAL WEDNESDAY, MARCH 24, 1993 i Next week the Supreme Court will have the opportunity to crack down on the proliferation of junk science in American courtrooms. The occasion is a case called Daubert v. Merrell Dow Pharnmaceuticals, on which the court is scheduled to hear arguments Tuesday. At issue is whether the Federal Rules of Evidence require, or even permit, a court to adhere to the common-law "Frye" rule. The Frye rule holds that a court should exclude expert scientific evidence that is based on a theory or method that is not generally accepted in the scientific community. Daubert involves two boys born with tragic birth defects that reduced the size of their limbs. Their parents filed suit alleg- ing that the deformities were caused by their mothers' use of Bendectin, a once commonly prescribed morning sickness Rule of Law By David E. Bernstein I drug, duringpregnancy. The problem fac- ing the plaintiffs was that the defendant presented the trial court with overwhelm- ing scientific evidence from epidemiologi- cal studies showing that fetuses exposed to Bendectin do not have a higher rate of limb reductions than those not exposed. The plaintiffs countered by presenting experts who testified that based on their reanalyses of the data used in those epide- miological studies, they believed that Ben- dectin does cause birth defects. The dis- trict court found that this was not compe- tent evidence and granted summary judg- ment for the defendant. The plaintiffs next appealed to the Ninth Circuit Court of Appeals, which affirmed in an opinion written by Judge Alex Kozinski. Judge Kozinski noted that the plaintiffs' experts had not submitted their reanalyses to peer review, or pub- Junk Science in the Courtroom lished them in a scientific journal. He explained that because the experts' reana- lyses were not subjected to verification and scrutiny by others in the field, the results of their studies would not be gener- ally accepted in the scientific community. The legal basis of Judge Kozinski's opinion was the Frye rule, named after the 1923 case in which it originated. The vast majority of courts adhered to the Frye rule until the promulgation of the Federal Rules of Evidence in 1975. Federal Rule 702 provides that scientific evidence is admis- sible if the proffered expert qualifies as such, and his testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." While Frye is not mentioned, there Is no indication in the legislative history of the rules that it was meant to be rejected. Because of Frye's "general accep- tance" test, the determination of what is appropriate scientific evidence for legal purposes was largely in the hands of the mainstream scientific community. With the promulgation of the Federal Rules, however, some judges believed that they were given wide latitude in determining whether questionable scientific testimony would be helpful and therefore admissible. The result was a series of embarrassing decisions in cases involving scientific evi- dence. Most prominent was what has be- come known as the Spermicide Case. The case involved young Katie Wells, a girl born with tragic birth defects. Her mother sued Ortho Pharmaceutical in fed- eral court in Georgia, claiming that its spermicidal jelly, Ortho-Gynol, was re- sponsible for Katie's defects. The case was heard in 1985 before District Judge Marvin Shoob. Judge Shoob, unfortunately, did not screen the evidence to ensure that it was generally accepted by the relevant scien- tific community. Despite the overwhelm- ing consensus of scientific opinion that the spermicide involved, nonoxynol-9, could not have caused the birth defects, Judge Shoob, sitting without a jury, found for the plaintiff and awarded $5 million in com- pensation for Katie Wells's injuries. Judge Shoob cited several scientific studies in 1»s decision, but only one of them directly investigated a relationship between spermicide use and birth defects of the sort that afflicted Katie. That study had been reviewed by the Food and Drug Administration, which found it inconclu- sive. One of the study's authors appeared at the trial, and warned Judge Shoob not to construe it as proving a link between spermicides and birth defects. The judge, he later remarked, had either ignored or failed to understand his testimony. Judge Shoob's published opinion sug- gests that he emphasized the "demeanor" ~-.-.,,.... . . . '~ rtdlet the iG'rye rule, the' EJ daterrninattun of what i is *ptbprstate eiexttip ~otJili'erGC¢ ttttts F{3Tp6ly in_ th1t;.'. ~ '}tandv of the =ins#reum scientific comm4ni.fy, I i and "tone" of the experts and his percep- tion of their biases and motives more than the substance of their testimony. Many in the scientific and medical communities were upset when the 11th Circuit Court of Appeals affirmed. The Spermicide Case marked a turning point in the annals of junk science. Embar- rassed judges began to return to the Frye rule and to otherwise more strictly scruti- nize scientific testimony before admitting it into evidence. . The result has been a greater conver- gence between scientific opinion and courtroom result. For example, another spermicide case making almost identical claims had been filed in the same court as the Wells case at about the same time. Because of procedural delays, that case A15 was not At" until j891. This time, a different judge `excluded the testimony of the plaintiffs' eatperts and found for the defendant. the judge noted that in the ensuing six years the Btandards for admit- ting scientific evidence hNd gtown,far stricter, and that the same evidence? Shoob relied upon In finding for tbe pbft' tiff was no longer admissiible. Despite this strict-scrutiny trend, juhli- '~ science litigation continues to be a prob- lem. Electric power lines are attraet$ig junk-science-based litigation, as are video display terminals. Junk-science claims about silicone breast implants and f7t1- mune-system problems are also beginning to hit the courts, already resulting ihone award of $25 million. And despite over- whelming defeat thus far for plaintiffs' lawyers, Bendectin claims continue to. be litigated. A Supreme Court opinion affirm- ing that the Frye rule was not mooted,by the passage of the Federal Rules of ;;vf- denee would discourage severely thi`s liti- gation, as well as future junk-sdience claims. Of course, the Supreme Court cannot simply look at the effects of its rulings; its duty is to consider the underlying law. Some scholars argue that itale 702 super- sedes the Frye rule, while many qthers disagree. In resolving this Issue in pad- berl, the court should keep in mind thb text of Rule 102 of the Federal Rules of Evl- dence, which provides overall guidance for interpreting the Federal Rules: "These rules shall be construed ... to the end.that truth may be ascertained and proceedings justly determined." A decision reaffirmjng the Frye rule or establishing a new, simi- larly strict standard for admissible scien- tific evidence would serve to advance these goals significantly. . I Mr. Bernstein, a Washington attorney, is co-editorofthejorthcoming "Phantom Risk: Scientific Inference and the Law" (MIT): i 840btil.bLOZ